in Re Steven MacK McGee

• Court: Court of Appeals of Texas
• Decided: May 18, 2022
• Docket: 06-22-00068-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00068-CR

IN RE STEVEN MACK MCGEE

Original Mandamus Proceeding

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

Relator, Steven Mack McGee, an inmate proceeding pro se, has filed a petition for a writ

of mandamus asking this Court to direct the Honorable Brad Morin, presiding judge of the 71st

Judicial District Court of Harrison County, Texas, to issue a judgment nunc pro tunc correcting

his judgment of conviction to reflect concurrent, rather than consecutive, sentences. Because

McGee failed to provide us with a sufficient record to establish his right to mandamus relief, we

deny the mandamus petition.

Mandamus will issue “only when the mandamus record establishes (1) a clear abuse of

discretion, and (2) the absence of a clear and adequate remedy at law.” In re Blakeney, 254

S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878

S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)). “It is the

relator’s burden to provide this Court with a sufficient record to establish his or her right to

mandamus relief.” Id. (citing Walker, 827 S.W.2d at 839–40; In re Pilgrim’s Pride Corp., 187

S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding)); see TEX. R. APP. P. 52.3,

52.7(a).

Rule 52.3 requires the person filing the petition for a writ of mandamus to “certify that he

or she has reviewed the petition and concluded that every factual statement in the petition is

supported by competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j).

The petition in this case does not contain this required certification. In addition, the appellate

rules require that the appendix contain “a certified or sworn copy of any order complained of, or

any other document showing the matter complained of,” TEX. R. APP. P. 52.3(k)(1)(A), and that

2 the record contain “a certified or sworn copy of every document that is material to the relator’s

claim and that was filed in any underlying proceeding,” TEX. R. APP. P. 52.7(a)(1). Although

Relator’s appendix contains copies of orders and other documents, they are not certified or

sworn.1

McGee also states that he filed a motion for a judgment nunc pro tunc with the district

court requesting that the complained-of judgment be corrected. Even so, the appendix in this

case does not contain a sworn or certified copy of the motion, or any document showing that it

has been presented to the trial court for a ruling. As a result, the record provided fails to show

that his motion was filed with the district clerk, that it was presented to the trial court for a

ruling, or that the motion has been pending for a sufficient time since such presentment. See In

re Henry, 525 S.W.3d 381, 382 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (per

curiam).

“Because the record in a mandamus proceeding is assembled by the parties,” we must

“strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the

mandamus record.” In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—

Dallas Mar. 22, 2019, orig. proceeding) (mem. op.) (quoting In re McKinney, No. 05-14-01513-

CV, 2014 WL 7399301, at *1 (Tex. App.—Dallas Dec. 15, 2014, orig. proceeding) (mem. op.)).

On this record, we cannot say that Relator has established a right to the relief he has requested.

See Blakeney, 254 S.W.3d at 662.

1 The last document in Relator’s appendix is a copy of a clerk’s certification dated September 3, 2019. Since the appendix contains both documents that contain a file stamp and documents that do not, it is not clear to which documents, if any, the certification applies. 3 For that reason, we deny the petition for a writ of mandamus.

Scott E. Stevens Justice Date Submitted: May 17, 2022 Date Decided: May 18, 2022

Do Not Publish